In an ever-changing economic environment, the strength of a legal framework is measured not just by the ink on the page, but by its application in the face of modern complexity.
Last year, I argued that South Africa’s insolvency regime, anchored by the Insolvency Act of 1936, the Companies Act of 2008, and the Cross-Border Insolvency Act of 2000, gives us genuine reason for pride. These statutes strike a delicate balance between protecting local creditors and employees while signaling to the world that we are open to responsible international cooperation.
While that argument held in principle, we now have the judicial certainty to back it up. On 23 March 2026, the Supreme Court of Appeal (SCA) delivered a unanimous judgment in Scheer v Wagner N.O. and Others. This landmark ruling serves as the perfect sequel to our conversation on statutory maturity, demonstrating that our laws are capable of delivering fair, pragmatic outcomes in intricate global cases.
The test of international comity
The matter involved Jürgen Scheer, whose estate was sequestrated in his home country of Austria in 2017, leaving international creditors with a shortfall exceeding €4.4m. A secondary sequestration followed in South Africa in 2018. Once local creditors and costs were fully satisfied, a surplus remained.
The Austrian trustee sought to transfer this surplus to the primary estate to benefit the unpaid global creditors. Scheer opposed this, arguing that under Section 116 of our Insolvency Act, any local surplus must be returned to the debtor. He contended that the law left no room for judicial discretion or international transfer.
The SCA disagreed. Adopting a purposive interpretation, the court held that the Act does not contemplate a "surplus" in a vacuum where a foreign domicile estate remains in deficit. Instead, common-law principles of international comity apply. This ensures that once local priorities are respected, the remaining funds address the broader shortfall rather than creating an "orphan pot" for the debtor’s benefit at the expense of their creditors.
Mole Tshikare 24 Mar 2026 Why judicial prudence matters
This judgment is living proof that our 1936 Act remains flexible enough to handle 21st-century realities when read alongside the Cross-Border Insolvency Act and constitutional values. The SCA did not rewrite the statute but interpreted it to avoid absurdity and uphold the core objectives of our regime: equitable distribution and respect for international cooperation.
However, the case also highlights the limits of judicial creativity. While the court navigated this beautifully, it underscores that our underlying statutory language was not originally drafted with the digital nomad or high-net-worth individual with cross-border assets in mind.
From pride to proactive leadership
The Scheer v Wagner decision strengthens South Africa’s position as a sophisticated, investment-friendly jurisdiction. Foreign investors can take comfort that our courts prioritise fairness over rigid protectionism. Local creditors remain protected - they are paid in full first - while the principle of comity prevents unjust enrichment.
Yet, this success issues a gentle invitation to Parliament - let us not rest on judicial ingenuity alone. The next logical step in our evolution should be targeted legislative refinement. Expressly clarifying the treatment of surpluses in dual-jurisdiction estates would make our framework more predictable in a globalised economy.
Charlise Finch and Werner Lotter 5 Aug 2025 A framework for a globalised world
For stakeholders, the implications are clear.
In the first instance, for practitioners there is now greater certainty when advising on dual sequestrations.
Secondly, assets cannot be easily compartmentalised across borders to evade global obligations, which means that debtors need to see rehabilitation as holistic. For international investors, South African assets will not become trapped in jurisdictional silos, fostering confidence in our markets.
When I previously wrote that our insolvency statutes are ones we can be proud of, I meant it. This latest judicial milestone validates that pride. Our courts have shown they can adapt an 88-year-old Act to modern challenges without compromising its integrity.
The question now is how boldly we choose to evolve next to ensure South Africa continues to set a global example for legal harmony and resilience.
